LR Corner
Monday, May 23, 2011

NATCA Enters Into Interim Agreement for the Aviation Technical Systems Specialists Unit (2186 Series)

On May 18, 2011, the union obtained an interim agreement covering the Aviation Technical Systems Specialists (2186 Series) bargaining unit. These employees recently voted to be represented by NATCA. The interim agreement provides for, among other things, union recognition, official time, a process to deal with changes in employment, and a grievance process in the interim while the union negotiates a permanent agreement.

NATCA Wins FLRA Negotiability Appeal

The FLRA just issued a favorable decision (65 FLRA No. 155) in a negotiability appeal filed by NATCA concerning changes to the airspace at Houston Center. The agency changed the airspace by adding a new sector. The union submitted proposals to mitigate the impact of the change on the bargaining unit employees, including training delays and loss of pay. Even though the agency had already implemented the change by the time the FLRA issued the decision, the FLRA’s ruling that several proposals by NATCA are negotiable has future application when airspace changes are made. 

NATCA proposed that controllers who were already fully certified in the area impacted by the airspace change would be deemed to be fully certified on the new Lufkin Sector, thereby maintaining their fully certified status for pay purposes. The agency argued that the proposal was not negotiable because it limited the agency’s right to assign work. The union argued that the proposal was an appropriate arrangement because it would prevent fully certified controllers from losing pay as a result of the airspace changes. The union also argued that the agency was not restricted in its right to assign certification training for the new sector under the proposal. The FLRA ruled that the proposal to deem controllers to be fully certified on the new Lufkin sector was negotiable because it was an appropriate arrangement, it was sufficiently tailored to mitigate the harm to employees who were impacted by the airspace change, and the proposal did not excessively interfere with management’s right to assign work. 

NATCA also proposed a 90-day grace period during which controllers could not be disciplined for errors while working the new sector. The FLRA held that the proposal for a 90-day grace period is an appropriate arrangement despite the agency’s claim that it would limit the agency’s right to discipline and assign work. The FLRA weighed the benefits to the controllers impacted by the change in airspace against the potential for limiting the agency’s right to assign work, and found that the proposal is an appropriate arrangement.

Applying the same analysis, the FLRA also found negotiable several other proposals by the union including a proposal to locate the radar scope for the new sector near position controlling the adjacent airspace in order to facilitate communication, a proposal to establish and utilize a training cadre for the new sector training, a proposal to provide space to post strips for non radar aircraft in the new sector, and a proposal that there be no local or regional changes to the airspace MOU. 

The FLRA did dismiss the union’s three proposals concerning loss of pay due to training delays, based on the agency’s claim that there was no duty to bargain because the issue of pay was “covered by” the contract. The FLRA held that bargaining obligation disputes (as distinct from negotiability disputes) cannot be resolved in a negotiability appeal proceeding and dismissed those claims.

Arbitrator Sustains Union’s Grievance Regarding Telework

On October 14, 2009, two grievances were filed on behalf of an FAA employee regarding the agency’s failure to approve the grievant’s telework requests. The two grievances were consolidated and submitted to arbitration. 

During the hearing, the union argued that the grievant’s request to telework was reasonable, workable, and would have had no negative effect upon the efficiency of the service. The union also argued that the agency did not provide the grievant with a proper response to his telework request as required by the CBA, and that as a result of the agency’s actions to deny the request the grievant suffered substantial financial harm, including but not limited to the grievant’s use of annual and sick leave in lieu of teleworking. At the hearing, the union effectively addressed all of the arguments put forth in response to the employee’s grievance regarding this matter. The three arguments set forth by the agency in its grievance responses to support its position were that: 1) the grievant must be physically present for brainstorming and daily interactions; 2) the grievant is required to “assist” or “mentor” new employees; and 3) there were too many retirements in previous years to permit teleworking for the grievant. The union successfully proved that the agency did not provide any objective information or hard data to support any of its assertions. At the hearing, however, the agency maintained that the denial of the grievant’s request was based on the legitimate business needs of the agency, including the added value to operational efficiency through impromptu group interaction.

In reaching a decision, the arbitrator reviewed the Participation Criteria defined in paragraph 8 at page 6 of HRPM LWS-8.19, FAA Telework Program. When reviewing the denial of the grievant’s request she found no reference to any of the criteria listed in the agency’s own policy. The arbitrator made note in her decision that the grievant’s request for teleworking was submitted on May 20, 2009; however, he received no response from his manager until September 28, 2009. Based on this, the arbitrator determined that a lapse of well over four months provided more than sufficient time for the agency to do a careful review and consideration of the grievant’s request consistent with the Participation Criteria contained within HRPM LWS-8.19. The arbitrator noted that, while it is management’s right to approve telework requests and teleworking is a management option, there is nothing within the agreement that allows management to make a determination regarding a telework request without giving consideration to the Participation Criteria contained within HRPM LWS-8.19.  The arbitrator sustained the grievance and ordered that: (1) within fifteen days of the receipt of the award, the agency offer the grievant the opportunity to telework consistent with the parameters of the request that he submitted on May 20, 2009 and (2) that the grievant be made whole for any and all costs that he incurred from June 20, 2009. Said costs were ordered to include forfeited sick leave, annual leave and compensatory time, as well as any financial losses due to his commuting, including costs associated with transportation and parking.